BCCI's review petition a desperate gamble?

There is a certain irony about BCCI reviewing a decision. But like in the case of the Decision Review System that it opposes, filing a review petition against the reforms recommended by the Lodha Committee, and mandated by the Supreme Court, this can be seen as a desperate late review to waste minutes while trying to save a Test in dying light. Or perhaps there is a bigger gambit.

On the face of it, a review petition is the only legal recourse available to the BCCI. However, for it to have a chance to succeed, its legal team will have to persuade the same set of judges - in this case the Chief Justice of India TS Thakur and a judge he nominates because his partner in this case, Ibrahim Kalifullah, has retired - of an apparent error in their judgment. And if they choose to admit the petition, it will be heard in private.

The BCCI, it is said, has been emboldened by the legal advice it has received from former Supreme Court judge Markandey Katju, who, in an extraordinary offensive, has called the Supreme Court's decision "unconstitutional and illegal". He has accused the Supreme Court of setting a bad precedent by assuming legislative powers in this case, or practising in "judicial activism" as it is known in legal circles.

Legal experts, however, point out this is not the first time the judiciary has ventured into drafting legislation, more popularly with the drafting of Visakha, a set of guidelines in cases of sexual harassment in India because at that time there was no such law in India.

As matters stand, the BCCI is poised to take Katju's advice and miss the August 9 meeting with the Lodha Committee. That, and hiring Katju is being seen in legal circles as tantamount to waving the red rag to the judiciary for there is history between him and Justice RM Lodha. Katju has been in recent times an outspoken critic of the Indian judiciary. After taking over the chairmanship of the press council, he had public issues with Lodha, who recommended a two-year cooling-off period for retired judges before they took up government assignments.

If this is a delaying tactic - Kalifullah has already retired, and Thakur is due to depart in January 2017 - legal experts believe there is far too much time left to delay through this final review. This review petition will have to be filed by August 18 or thereabouts, and the BCCI will still have to kill another five months if they are hoping for a change of heart from the new chief justice after Thakur.

Justics JS Khehar is in line to succeed Thakur and he was ‪part of the two-man bench before whom the BCCI had challenged the decision of the Bombay High Court‬ about the fact that due legal processes had not been followed in investigating the IPL 2013 corruption case.

However, seen from another angle, it can be argued that there is little to lose from taking the matter further for the current BCCI dispensation because a majority of them stand to lose positions either immediately or after the current term is over if two major recommendations - taking out administrators who are over 70 and those who have already served nine years - come in to effect. They may as well give it every desperate shot.

Yet there is another school of thought that gives the BCCI more credit than just gambling desperately. The board, with a member of parliament from the ruling party (the BJP) as its head and the union finance minister widely believed to be its godfather, enjoys loyalties in the parliament that cuts across party lines, which is believed to be the BCCI's trump card.

It is believed that powers higher than the BCCI office bearers are calling the shots now; in fact some BCCI members have anonymously questioned the wisdom of pitting a former Supreme Court judge against the Chief Justice of India. However, there is possibility of cold logic and an elaborate game plan behind this. Filing the review petition, even if it is not likely to be entertained as Katju has himself written in his blog, is to follow the formalities and also buy time. In Katju they have a man who will publicly say what they want to say but with the authority of a former Supreme Court judge. Also, during the process there will be unnamed BCCI sources telling the media how the legal tussle is hurting the organisation of cricket matches in order to gain more sympathy.

While all this serves as a distraction, the parliament could move to clear the long-pending Sports Bill which was originally brought in as a means to rein in errant sports federations, offer regulations regarding age (60) and tenure of officials much like the Lodha regulations. The Sports Bill was being held up due to political opposition for the last four years, but the Lodha report may give it life again, even if in a slightly diluted form, reducing age and tenure limitations and making it an overarching piece of legislation which the BCCI can adhere to and extricate themselves out of the Lodha report's far tougher regulations.

On paper, political will should be easy to garner because the BCCI has members across political parties, but if this is the BCCI plan, it will not be as rosy as it sounds. For starters it might have to agree to fall under the Right to Information Act (RTI), an integral part of the Sports Bill that the BCCI has avoided. Moreover, legal experts believe that while the parliament can pass a bill that overrules the Supreme Court judgement, there has to be a sound legal foundation for it; the only purpose of the bill cannot be to counter a recent Supreme Court judgement.

If this is indeed the plan, the BCCI will have to execute it to perfection to get over all possible objections and public outrage against it, but even if such a bill does get cleared to counter the Lodha Committee, all it will take is a Public Interest Litigation (PIL) from any Indian citizen to take the matter back to the judiciary. Either way it is safe to say that we are some way from hearing the last of this case.